Q & A: Fatality Audits

Question: "Do you recommend that employees have representation (legal) during major injury or fatality audits?"

Answer: “Yeah, that's always good advice. Finding an attorney who understands labor law is a bit trickier in some regions, but not impossible."

Seeing how those situations can put members of the workforce under an extreme amount of stress, I wouldn’t want a member of my team—from the top on down—going it alone during the interview/investigation process. Employees can have their personal attorney present, a union delegate if applicable, and a company attorney under certain conditions and only with the consent of the employee.

Here’s what OSHA says on the matter...

Conducting Employee Interviews.

a. General Protocols.

• At the beginning of the interview Compliance Safety & Health Officers (CSHOs) should identify themselves to the employee by showing their credentials, and provide the employee with a business card. This allows employees to contact CSHOs if they have further information at a later time.
• CSHOs should explain to employees that the reason for the interview is to gather factual information relevant to a safety and health inspection. It is not appropriate to assume that employees already know or understand the agency’s purpose. Particular sensitivity is required when interviewing a non-English speaking employee. In such instances, CSHOs should initially determine whether the employee’s comprehension of English is sufficient to permit conducting an effective interview. If an interpreter is needed, CSHOs should contact the General Services Administration (GSA) tele-interpreter or use the Area Office’s protocol for interpreters.
• Every employee should be asked to provide his or her name, home address and phone number. CSHOs should request identification and make clear the reason for asking for this information.
• CSHOs shall inform employees that OSHA has the right to interview them in private and of the protections afforded under Section 11(c) of the Act.
• In the event an employee requests that a representative of the union be present, CSHOs shall make a reasonable effort to honor the request.
• If an employee requests that his/her personal attorney be present during the interview, CSHOs should honor the request and, before continuing with the interview, consult with the Area Director for guidance.

Rarely, an attorney for the employer may claim that individual employees have also authorized the attorney to represent them. Such a situation creates a potential conflict of interest. CSHOs should ask the affected employees whether they have agreed to be represented by the attorney. If the employees indicate that they have, CSHOs should consult with the Area Director, who will contact the RSOL.

Here’s bit of advice, from a group of employment law attorneys...

OSHA Objections to Legal Counsel

"Unfortunately, in many inspections, OSHA objects to the employee having another person present, including legal counsel. In those instances where OSHA agrees to allow the employee to have legal counsel, the agency objects to allowing the employee to utilize the employer’s attorney who has been provided at no cost to the employee. OSHA claims that such attorney may have a conflict-of-interest representing the employer and also representing the employee in the interview.

It should be noted that it is not OSHA’s right to object to any potential conflict‑of‑interest.

Rather, it is the employee’s right to accept the representation (provided, of course, that the attorney has discussed potential conflicts of interest with the employee).

OSHA also objects to the employer’s legal counsel provided at no cost because the employee may be exposed to retaliation by the employer for what is said in the interview. This argument is likewise without foundation because the employee is protected from retaliation under Section 11(c) of the Act for participating in the interview or inspection with OSHA. Thus, it is both inappropriate and unfair for the agency to object to the presence of legal counsel provided at no expense by the employer in an interview where an employee could face potential civil or criminal liability arising out of an accident and which will force the employee to retain other legal counsel at the employee’s expense if the employee wishes to exercise these rights. Indeed, in many cases, an employee cannot afford to retain his own counsel and thus is effectively denied legal counsel."